Anglican Retirement Villages, Diocese Of Sydney v Wollongong City Council

Land and Environment Court (NSW)|2013-01-29|Before: Pain J, Mr J

EX TEMPORE Judgment 1I am determining a notice of Motion seeking an order for joinder of Mr Kennedy as a party in these s 97 appeal proceedings. There is an adjourned s 34 conciliation conference, held 20 November 2012, set down for further conciliation today. The Notice of Motion is made pursuant to Pt 6 r 6.27 of the Uniform Civil Procedure Rules 2005 (UCPR) which provides that a person can apply to the Court to be joined as a party. The more appropriate section to invoke appears to be s 39A of the Land and Environment Court Act 1979 (the Court Act) which provides that a third party may be joined in specified proceedings including appeals under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) in certain circumstances. 2The proposed development by the Applicant, Anglican Retirement Villages, Diocese Of Sydney (ARV), is preliminary sub-surface contamination and archaeological investigation of 2 Sturdee Ave Bulli. The preliminary site investigation works are for the purpose of determining the development potential of the site. The DA was refused by the Council on various grounds including that the Council was not satisfied that the development is consistent with the terms of approval of the approved concept plan, the statement of commitments and modification B1 aboriginal cultural heritage of the concept plan approval. Further, pursuant to s 79C(1)(b) and (e) the Council was not satisfied that the proposed works would not have an unacceptable impact on the aboriginal cultural heritage significance of the site. 3The statement of facts and contentions is lengthy. The Council identifies numerous contentions including that the proposal is inconsistent with concept plan MP06-0094. Part B of the concept plan identifies a series of modifications to the statement of commitments. Item 12 of the statement of commitments requires consultation with appropriate aboriginal community members to determine the location and significance of the women's area which may be located over the subject site. The Council did not consider this had been complied with at the time the statement was prepared. 4Mr Oshlack on Mr Kennedy's behalf submitted Mr Kennedy is a necessary party. Mr Kennedy has provided an affidavit in support of the Notice of Motion dated 24 January 2013 in which he states that he is a member of the Sandon Point Aboriginal Tent Embassy (SPATE) and chair of the Illawarra Local Aboriginal Land Council (ILALC). Aboriginal people have had a continuing connection to significant sites on 2 Sturdee Ave Bulli. The land is accessed for cultural heritage sites by aboriginal traditional owners. Further interference with the site would impact on a significant women's site already partially damaged by other development. Further interference with the site in a culturally inappropriate manner is likely to cause further distress and consternation within the aboriginal community. The aboriginal community and identified custodians have never been consulted in relation to the nature, reason and extent of the proposed work by the Applicant. The Court needs to be apprised of the compelling evidence from senior women custodians of the land of its significance. Mr Kennedy is not satisfied that the Council can adequately represent the interests of the Illawarra aboriginal community concerning this sacred aboriginal site. If joinder is refused it would be a denial of natural justice to Mr Kennedy and the Illawarra aboriginal community to make submissions and provide expert, lay and documentary evidence that the proposed application ought be refused. 5Mr Kennedy also has environmental concerns about excavation in the E2 environmental protection zone and the relationship with the State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP). 6An affidavit of Ms Gough dated 29 January 2013 was read and identifies her role as a worker in the Illawarra aboriginal community presently employed by the ILALC as the project manager of the Sandon Point Community Coast Care project. Ms Gough attended the s 34 conciliation conference held on 20 November 2012 and spoke during the walk over part of the site. Mr Kennedy and Ms Robinson of the ILALC could not attend due to personal commitments. During the inspection all present were shown where excavations were to take place and the means to do it were described. Ms Gough was concerned as she learnt for the first time of the intention to use machinery and make tracks through the turpentine forest to access some test sites. The objectors could not attend the meeting of the s 34 conference which took place at the Council chambers after the site visit. Ms Gough offered more than once to assist the Council officer working on the appeal with aboriginal community matters. On 15 January 2013 the Council's solicitor wrote a letter advising that the conference was set down for 29 January 2013 and that only the parties to the proceedings could attend. No attempt has been made by the Council or ARV to contact, consult or share any report or proposal as regards the development or any agreement about it between the Council and ARV. SPATE is a legitimate aboriginal stakeholder. 7Ms Rourke, solicitor for ARV, also swore an affidavit setting out the steps taken in the appeal process and in relation to the s 34 conference on 20 November 2013.

Mr Oshlack's submissions 8Mr Kennedy is a senior aboriginal elder, founding member and permanent resident of the Sandon Point Aboriginal Tent Embassy and chair of the ILALC, and has not been properly consulted by either party in relation to this appeal. The ARV site is a significant aboriginal heritage site particularly because it contains an important women's sacred site. No Aboriginal Heritage Impact Statement (AHIP) is proposed. (ARV and the Council advised during the hearing that they intend to agree to conditions of development which include a requirement for an AHIP over part or whole of the site to be obtained from the National Parks and Wildlife Service). Impact on aboriginal heritage was one reason for refusal of development consent by the Council and Mr Kennedy had expected that the Council would continue to oppose the development proposed by ARV. The Council has now reached agreement with ARV on consent conditions and this was done without consultation with aboriginal people since the adjournment of the s 34 conference on 20 November 2013. The terms of the agreement reached on the basis of agreed development consent conditions are unknown to Mr Kennedy. 9The Court should have evidence before it of these significant aboriginal cultural matters in particular several reports referred to by Mr Kennedy in his affidavit. The consultation has been inadequate and there are unresolved concerns concerning the excavation of a sacred site. Mr Kennedy is acting in te public interest and it is in the interests of justice that he be joined.

Council's submissions 10The Council does not consent or oppose the application for joinder.

ARV's submissions 11The application for joinder is opposed. There has been consultation with aboriginal people as identified in Ms Gough's affidavit, annexure B. The ILALC's submissions dated 16 January 2012 tendered by Mr Oshlack oppose the development consent. The basis for the Council's refusal of the DA was the potential impact on aboriginal heritage significance, so that this issue is well known to the parties and raised in the Council's reasons for refusal of the DA and the statement of facts and contentions. The substantive issues of concern raised by Mr Oshlack are addressed by ARV agreeing with the Council that an AHIP will be applied for and ARV changing the location of proposed bore holes so that these lie outside the E2 conservation zoned land. 12Although not raised as an issue until Mr Oshlack's oral submission, the statement of facts and contentions refers to Part A par 5 item 12, statement of commitments, specifying consultation with aboriginal community members to determine the location of the women's area located over the subject site as referred to in a report by Ms Dallas. This has been found to have been undertaken, see Pepper J in Kennedy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 257 at 81. I note this is disputed by Mr Oshlack who appeared in that matter as agent for Mr Kennedy. 13The efficient dispatch of litigation is in the public interest and joining a further party in the proceedings will not achieve this objective.

Consideration 14Section 39A of the Court Act is the appropriate provision under which to consider the application for joinder as a party by Mr Kennedy. For subsection (a) Mr Kennedy needs to demonstrate that he is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party. Substantive concerns raised by Mr Kennedy and Mr Oshlack in submissions such as the failure to apply for an AHIP and environmental concerns about work in the E2 conservation area are now to be addressed by the agreed consent conditions. It is unclear if the issue identified in the statement of commitments par 5 item 12 has been satisfied or not. There remains a difference of opinion between the parties about item 12 in the statement of commitments in relation to cultural heritage and the work that needs to be undertaken in order to identify the women's sacred site area. 15Section 39A also refers to joinder firstly, in the interests of justice, and secondly, in the public interest. One major remaining concern is the perceived lack of consultation with senior members of the Illawarra aboriginal community concerning the agreement now reached between the Council and ARV since the s 34 conference on 20 November 2012. In this case objectors were provided with an opportunity to participate on 20 November 2012. Ms Gough participated on that day. According to Ms Gough's affidavit, much of what ARV proposed on the site only became clear in more detail on that day. There has been no consultation since with any member of SPATE or the ILALC. The terms of the development consent conditions were only agreed last Friday afternoon, I was informed, and the draft conditions provided to Mr Oshlack in the course of the hearing on the joinder application today. Mr Oshlack on Mr Kennedy's behalf only received the statement of facts and contentions in court today. If not joined as a party, which enables participation in any subsequent s 34 conference, the matter will effectively settle without Mr Kennedy's involvement on behalf of the Illawarra aboriginal community. I am aware that the Sandon Point area in general has been the subject of much dispute over many years between various developers and the aboriginal community and I consider that it is important that justice be seen to be done in these circumstances. The significance of the ARV site to the local aboriginal community is attested to in Mr Kennedy's affidavit. This is a finely balanced matter in these circumstances, given that joinder of a further party is likely to necessitate further time spent in a conciliation conference and possibly a contested hearing if the matter cannot be conciliated, with further cost to the parties. 16I was referred by the parties to Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13 where Sheahan J stated that an order under s 39A or s 38(2) should only be made in special circumstances. I consider these can be considered to exist here. 17I was also referred to Morrison Design Partnership Pty Ltd v North Sydney City Council (2007) 159 LGERA 361 at 371 where Preston J considered it was not necessary to join a third party pursuant to s 39A of the Court Act given a lengthy consultation process during which that party's views could be communicated to the consent authority. I also agree with his Honour's comments in [54] that the process of community consultation should not be seen as an end in itself and there must be a limit to how long and detailed that process should be. Ultimately however each case must depend on its own circumstances and weighing up the significance of the site in question to the local aboriginal community, the possibility that additional matters have not been brought to the Court's attention concerning the ARV site, the very recent agreement of the Council with ARV about development conditions which will result in a settlement of the appeal without effective consultation with the local aboriginal community represented by Mr Kennedy, I consider that it is in the interests of justice that an order joining Mr Kennedy as a party as Second Respondent ought be made. 18For completeness I note that Mr Oshlack also submitted that a "Double Bay Marina" order could be made under s 38(2) of the Court Act enabling limited participation in these proceedings but not joinder as a party. While that is an option open to me, the effect of such an order in relation to a s 34 conciliation conference is non-existent as the conduct of such a conference under s 34 of the Court Act is largely to be determined by the parties. There is no utility in making such an order in the circumstances before me.

Orders 19The Court makes the following orders: (1)Mr Kennedy to be joined as a party to the proceedings under s 39A of the Land and Environment Court Act 1979. (2)Mr Kennedy to file statement of facts and contentions by 5pm 4 February 2013. (3)Case management of further conciliation conference to be held before Brown C on the 7 February 2013 at 4pm. (4)The question of costs is reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2013

(2007) 159 LGERA 361

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